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Attorneys are arguing Sen. John McCain's comments could prevent a fair trial

McCain said he would hold a hearing if Bergdahl wasn't punished after his trial

Fort Bragg, North Carolina CNN —  

Defense attorneys for Army Sgt. Bowe Bergdahl sought to have charges against their client dismissed Tuesday, arguing that comments made by Sen. John McCain could prevent a fair trial.

Speaking to The Boston Herald in October, McCain said that he would hold a congressional hearing if Bergdahl wasn’t punished during his military trial. In the same interview, the Arizona Republican added that Bergdahl “clearly deserted” his post.

Bergdahl is facing a court martial for charges of desertion and misbehavior before the enemy after he disappeared from his base in Afghanistan in June 2009. He was captured and held in captivity by the Taliban until a prisoner exchange in May 2014.

In what he referred to as the “McCain motion,” lead defense attorney Eugene Fidell said that the comments by the senator not only create a more favorable landscape for military prosecutors but also fall under the category of “unlawful command influence” and could sway the opinion of the convening authority in the case, Army Gen. Robert Abrams, commanding general of Forces Command, the military official overseeing the process of bringing charges against Bergdahl.

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The judge, Army Col. Jeffery Nance, asked the prosecution whether McCain could have an indirect influence on the case because he is a member of Congress, which ultimately holds the purse strings for the military. The prosecutors promptly said no, because he is not part of the chain of command that reports to the convening authority on the case.

McCain isn’t the only politician to have spoken publicly about the case. On the campaign trail, Republican presidential nominee Donald Trump frequently calls Bergdahl a traitor and ridicules America’s negotiating team for releasing five Taliban prisoners in order to retrieve him.

On Monday during the pre-trial hearing, Nance ruled that Abrams must testify on his own behalf Wednesday after the defense team filed a motion for him to be removed as the convening authority.

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Defense attorneys have said that Abrams should be removed because of “substantial prior involvement” in Bergdahl’s case when Abrams worked for former Defense Secretary Chuck Hagel, who was in charge of the Pentagon when the seized soldier was brought home.

They also objected to Abrams not sharing letters he received from the public regarding Bergdahl. Instead of showing them to the defense, he had them put in a burn bag and destroyed.

Fidell, the lead defense attorney, told media that Abram’s destruction of the letters was “detrimental to the defense” and “uncorrectable.”

The letters “span the spectrum of opinion,” Fidell said. “Some could have been hostile … but we’ll never know.”

Prosecuting attorneys argued that the letters would have no impact on the trial since they were inadmissible pieces of public opinion.